Monday, July 16, 2007

Physics Analogies and Law

Among my claims to truly minor (aka "nonexistent") celebrity status is (as I snidely observed back in January) that, as a law student, I was one of a team of five assistants to Larry Tribe on a law review article, with Barack Obama one of the other four. The article is The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, 103 Harv. L. Rev. 1 (1989), and my recollection is that I didn't do all that much work on the piece, in part because I thought the exercise somewhat ill-conceived.

The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands. This is why the famous Judith Jarvis-Thomson hypothetical case---in which you inexplicably wake up one day with your circulatory system intertwined with that of an unconscious violinist who will die if disconnected (reproduced seemingly without permission here)---is not all that helpful in breaking deadlocks about the moral status of abortion. Most people have much clearer moral intuitions about abortion than they have about unconscious violinists.

And likewise with modern physics. The interconnectedness of space, time and gravity that general relativity posits and the seeming paradox of the two-slit experiment at the quantum level are hard enough for people with serious training in physics to wrap their heads around. For most lawyers, even most very-smart-but-not-physics-trained lawyers, the answer to the question "what can lawyers learn from modern physics?" is "not much," I'm afraid. Tribe's admittedly elegant article is, like Thomson's violinist, an analogy going in the wrong direction.

Or so I long thought, until I happened across this wonderful Tom Tomorrow cartoon, which explains VP Cheney's hilarious claims that he is both entitled to executive privilege and not part of the executive branch by reference to quantum mechanics, with a reference to black holes thrown in. If only Tribe had posed the question "What can lawyers learn from cartoons about modern physics?"

Even though Mike is right that "[m]ost people have much clearer moral intuitions about abortion than they have about unconscious violinists," the problem with abortion debates is precisely that people are already committed to their bottom lines and won't engage with the logical issues involved.

Jarvis Thomson wants to get past the "is it a human being or something else?" question about fetuses, and she wants to put people on unfamiliar ground. She thus puts us in a deliberately odd situation and asks us to think anew about what really motivates our morality. She then gradually changes the hypothetical to make the situation more and more familiar.

I realize that some people reject her conclusion (although I fully embrace it), but the power of her argument flows directly from her use of an unfamiliar analogy.

We're not always incapable of understanding analogies that are about situations with which we're unfamiliar. Mike's bigger point, though, is still correct: that people have to be able to engage with the analogy in some way that enhances understanding, and general relativity doesn't do it.

I, too, find Thomson's violinist hypo to be very useful and persuasive in drawing out our intuitions, which can then be re-applied to the actual issue.

My problem with the use of the violinist analogy is it doesn't apply to the cases where my intuition is least clear: pregnancies that result from voluntary sex. To address these instances, she uses a hypo (human seeds floating in through an open window) where it is, to me, far less intuitive that the actor owes no moral "duty of support," so to speak. I can't shake the feeling that we ought to be responsible for the natural and foreseeable consequences of our own actions, vis-a-vis assumption-of-the-risk doctrine, or the "knowing" degree of mens rea for certain criminal offenses. To me, the real hard question on the abortion issue is where on the line of voluntariness (ranging from purely accidental, despite prophylatic measures, to purposeful conception) an abortion of a fetus that has become a human goes from being morally permissible to morally impermissible.

To her credit, Thomson does state that her position does not offer a general yes or no answer.

And I agree that Tribe's article was an anology going in the wrong direction. It may well have also been a fallacious appeal to authority. So, how much of the article can we hold Obama responsible for? :-)

The genius of that cartoon is that it plays on the one thing lay people *do* understand about the orthodox interpretation of quantum mechanics: that it makes absolutely no sense. What more perfect analog to Cheney's contorted reasoning could there be?

Tam is, as usual, quite right in his analysis. Jarvis Thomson's new framing of the abortion issue opens up the question of where to draw the line on assumed risk. She does not simply leave it at that, though. The part of the article that most people forget is her argument that there is no area of the law where we even come close to imposing a burden on someone as great as a nine-month, life- and health-threatening stint that will at least change one's body forever. If I recall correctly, she points out that we don't even do this when a person has actually volunteered, creating expectations and reliance interest, but then changes his mind and backs out. So even though this is a different line-drawing exercise, the power of the re-framing lies in showing that outlawing abortion would be miles beyond any line of obligation that we draw in any other area of life.

I think Thompson primarily was dealing with the "fetus as person with a right to life" argument, where *how* the fetus/violinist gets hooked up to the woman is less important than whether one considers the fetus/violinist to have a claim on the woman's support solely because the fetus/violinist is a person with a right to life. It's meant to get rid of the whole debate over whether a fetus is a person or not by putting in its place a violinist who indubitably is a person.

At the point one agrees that the violinist can be disconnected, one has agreed that the fetus does not have a positive right to life that gives it a claim, solely on that basis, to a woman's involuntary support. Which allows us to move on to what really motivates the distinction that tends to be drawn between abortion in cases of rape/incest, and all other abortions: the belief that a woman who voluntarily had sex deliberately put herself at risk of pregnancy and should have to complete the pregnancy.

I always wished that instead of the window analogy, Thompson had said that one listened to any form of music with the knowledge that doing so meant that one might be marked for selection to be hooked up to the violinist. This brings the analogy closer to that of voluntary sex, at least as experienced by many women: doing something voluntarily out of enjoyment or obligation (or both) that creates the possibility of being forced into a position one does not want. The violinist is not the giver of the pleasure of jazz music anymore than the fetus creates the pleasure of sex, but as the system (of biology and of analogy) has been set up, these are the risks one takes.

Should women have to choose between all opportunity to hear music and the possibility of having to carry an unwanted pregnancy on the one hand, and deafness to all music and the ability to avoid that possibility on the other hand? (Naturally, the answer will seem obvious to someone who doesn't care for music, but so the abortion question may seem to the asexuals -- don't want the risk, don't do the activity that creates it.)

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